Federal Pre-Trial Process

Preliminary Hearing

At the preliminary hearing the government must demonstrate to a judge or magistrate that there is sufficient evidence, or probable cause, to believe the suspect committed the crime with which he or she is charged.  Defendants usually must be present at this hearing, although they do not commonly offer evidence in their defense.  Alleged victims seldom appear at preliminary hearings.  Often, there is just one witness, the law enforcement officer who investigated the crime or who arrested the defendant.  This procedure has a similar function to grand jury proceedings, in that it is a safeguard against unjustified government action.  If the court finds that there is no probable cause, the matter is immediately dismissed and defendants are released.  The prosecution can re-file or pursue the case at a later time if they obtain additional evidence.  If the court finds there is probable cause the matter is transferred to trial court.

While the initial charging document in a federal criminal case is often a criminal complaint detailing the probable cause for the arrest, the government can prosecute felonies only by obtaining an indictment voted upon by a grand jury.  If an indictment has already been obtained, there is no right to a preliminary hearing because the grand jury has already determined that there is probable cause to believe that the individual charged committed the offense.

Detention Hearing

Preliminary hearings and detention hearings are often held together.  Nevertheless it is at the detention hearing that a U.S. Magistrate Judge determines if the individual charged will be released.  While there is a presumption in favor of pretrial release, the court focuses on whether the individual poses a flight risk or whether releasing the defendant endangers the safety of another person or the community.  Some crimes, however, involve a rebuttable presumption that the individual poses a threat to the community.  These crimes are: (1) a crime of violence, (2) a terrorism-related crime that carries a maximum term of imprisonment of 10 or more years, (3) an offense for which the maximum penalty is life imprisonment or death, (4) a drug crime carrying a punishment of 10 or more years in prison, or (5) any felony if the individual has previously been convicted of two or more of the previous offenses.

There is a three-step process for determining whether an individual will be detained pending trial.  First, the Magistrate Judge determines whether the person should be released on a personal recognizance or unsecured appearance bond.  If the person is released, he must not commit a Federal, State, or local crime during the period of release.  The second prong occurs if the Magistrate Judge determines that the individual should not be released on his own recognizance or on an unsecured bond.  In that case, the Magistrate Judge may decide to release an individual under a combination of conditions, including the posting of bond.  These conditions may include travel restrictions, maintaining employment, submitting to drug testing and counseling, submitting to a curfew, residing in a halfway house, or home detention.  Finally, if the court feels that release is inappropriate, it must conduct a detention hearing where both the prosecution and the defense can be heard.

The Federal system is not like State system.  An individual cannot go to a bail-bondsman and have the cash provided for a percentage fee.  If a cash amount is set by the Magistrate Judge, the individual may have to front a percentage of the bond himself, or sign a pledge to forfeit the bond if he fails to appear for trial.  If he appears for trial, the bond money will be returned to him.

In the event pretrial detention is contemplated, the detention hearing it must be held immediately upon the individual’s first appearance before the Magistrate Judge, unless a continuance is sought.  Except for good cause, however, the continuance cannot extend beyond five days.  At the hearing, the individual has the right to be represented by counsel, and he has the opportunity to testify, to present witnesses, to cross-examine witnesses who appear at the hearing, and to present information by proffer or otherwise.  The rules of evidence that govern trials, however, do not apply to a detention hearing.  The Magistrate Judge can only order the detention of the individual if no condition or combination of conditions will reasonably assure the safety of any other person and the community, and the decision must be made with the support of clear and convincing evidence.

If the court orders the release of the individual, it must issue a written order that states all of the conditions of release, and that advises the individual of the penalties for violating a condition of release.  If the court determines that the individual must be detained, it must do so in a written statement that states the findings of facts and reasons for detention, that orders the individual to be housed separately from convicted inmates, that orders the defendant a reasonable opportunity to consult with counsel, and that orders the defendant to be returned to court for all related proceedings.


On an indictment, you will be scheduled for an arraignment before a U.S. Magistrate Judge. At the arraignment, your charges are read to you.  At that time, you will be required to enter a plea of guilty or not guilty to the charges against you.  You will be advised of your rights.  No evidence will be taken at this time.  Shortly after this, the court will set dates for motions to be filed and for evidence to be disclosed, and a date for your case to be tried.  Your attorney will advise you of your rights and options.  Absent a waiver of the defendant’s right to a speedy trial, his federal criminal trial will begin within 70 days.


Federal law provides limited access to the government’s evidence against you.  In some cases, the prosecutor may provide more information than the law requires and make available the entire discovery file for review. In such cases, your attorney can review all evidence, testimony and investigative reports relevant to your case that are in the government’s possession.  In other cases, the prosecutor may limit access only to those materials that, under the law, must be made available to the defense.  In either event, only your attorney will have direct access to the government’s discovery file.  Your attorney should work closely with you to make sure that you know, and understand, what evidence is contained in the government’s file.  The rules of discovery must be strictly adhered to.  Your attorney will discuss these rules with you as your case progresses.  Your attorney will also communicate with the prosecutor to try to get an idea of the government’s view of your case.  These discussions can be very helpful as we prepare your case and as you make important decisions regarding how to proceed.  Whenever we talk to anyone outside our Office, we are very careful not to disclose any of the confidential information that you have told us or reveal any confidential strategy or results of our investigation.

Pre-Trial Hearings

The court may set any criminal case for a pre-trial hearing before it is set for final trial on the merits.  Pre-trial hearings are used to determine legal issues.  Pre-trial matters are decided by the judge and in most situations both the defense and/or prosecution present evidence and/or witness testimony.  At pre-trial hearings judges have an opportunity to hear evidence presented in order to determine what evidence is admissible at trial.  For example, whether law enforcement legally arrested a suspect and gathered evidence, pursuant to applicable federal law and the United States constitution.  If the person was unlawfully arrested, or the search and/or seizure were illegal, grounds exist for suppression.  This means the prosecution may not be able to introduce the improperly obtained evidence at trial.  Where essential evidence is suppressed, cases must be dismissed.  For example, if police unlawfully search a suspect’s home without a warrant or without the suspects consent, the evidence recovered cannot be used to prosecute the suspect.  Judges make such a determination at pre-trial hearings.  The burden of proof is on the prosecution.  If their burden is not met that serves as grounds for suppression.  Once met, however, the accused must demonstrate his or her rights were violated to be entitled to have the evidence suppressed (i.e., excluded from trial).

Another evidentiary issue determined by the court at pre-trial hearings involves statements made by a suspect.  An accused must “knowingly, intelligently and voluntarily” waive his or her right to remain silent (Miranda Rights) before law enforcement can lawfully take a statement.  Prior to taking a statement from a person in custody accused of a crime, police must inform the suspect of his or her Miranda rights.  If this is not properly done the judge may suppress the statement at a pre-trial hearing.

Additionally, at pre-trial hearings, if the person accused was identified in a line-up or photo array, evidence must be presented demonstrating neither procedure was conducted in a manner creating an improperly suggestive identification of the person accused. If the prosecution cannot meet this burden of proof, the court will not permit evidence of the identification and the identification procedure to be introduced at trial.

These are just a few significant issues addressed at pre-trial hearings.  An aggressive effective defense is crucial at every stage of a criminal case.  The Law Offices of Roderick White are prepared to provide the both effective and aggressive legal representation needed to get the very best result possible.

Pre-Trial Case Resolution

After indictment there are essentially two ways a criminal case may be resolved prior to trial: 1) dismissal; or 2) plea-bargaining.  The most favorable form of pre-trial disposition of a criminal case is a dismissal.  The prosecutor may, with the consent of the judge, dismiss a criminal case.  Common reasons for dismissal include: (1) insufficient evidence – for example, post-indictment trial preparation reveals a fatal lack of evidence such that the court would instruct a verdict in favor of the defendant; (2) crucial evidence is suppressed (excluded) because of an illegal arrest or search; (3) the defendant pleads guilty to other offenses (often less serious offenses); and/or (4) necessary witnesses cannot be located.  While there are many potential reasons for a dismissal, a competent aggressive defense, spearheaded by a competent aggressive criminal defense attorney, is almost always either directly or indirectly responsible.  For example, it is usually the defense attorney that convinces the prosecutor that there is insufficient evidence to successfully prosecute or gets the crucial evidence necessary to prosecute the case suppressed.  Like most other favorable results, dismissals of criminal charges are often the result of an aggressive effective defense.  While pre-trial dismissals are not always possible in every case, the aggressive attorneys at the Law Offices of Roderick C. White have obtained numerous dismissals of serious criminal charges and are ready, willing and able to aggressively seek the dismissal of any and all cases that we handle.

Plea Bargaining is the disposition of criminal charges by agreement between the prosecutor and the defendant, under judicial supervision.  Under the United States Sentencing Guidelines, prosecutors may exert a significant amount of influence over the ultimate sentence by deciding how to charge a case, by bargaining the application of guideline provisions, and by filing motions for downward departures based on substantial assistance. In order to provide effective assistance of counsel, a criminal defense practitioner must know when and how to counter the prosecutor’s power and negotiate a beneficial plea-bargain on behalf of his client.  While it is the judge in federal court that ultimately decides any punishment an appropriate plea agreement may go a long way in obtaining the most favorable result at the sentencing hearing.  The vast majority of all criminal cases are resolved by some form of plea bargaining.

Why plea-bargain?  A good criminal defense lawyer invariably asks two basic questions after thoroughly reviewing a case: 

1) Can I help my client beat these charges? and 2) If I cannot help my client beat these charges, how can I help him get the best result possible?  Helping clients beat criminal charges in high profile trials is the portion of a criminal defense lawyer’s that television shows and movies focus on. 

While the criminal trial is quite likely the most exciting part of the job, ensuring that clients get the best results possible when a trial cannot be won is a very important part of being a good criminal defense lawyer. This is where plea-bargaining often comes into play. Because not every criminal case can be won at trial, a good criminal defense attorney must also be a good negotiator. Effective and aggressive plea-bargaining is sometimes the best way to minimize a client’s exposure to a lengthy federal prison sentence.

The attorneys at the Law Offices of Roderick C. White are both aggressive trial lawyers and skillful negotiators that will do everything possible to secure probation or minimize any sentence.  Contact us immediately for a free consultation.